United States Department of Labor, Secretary of v. La Familia Corporation et al

Filing 152

MEMORANDUM AND ORDER denying 139 Motion for Discovery. See Order for details. Signed by District Judge Eric F. Melgren on 1/23/2013. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HILDA L. SOLIS,
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF
LABOR
Plaintiff,

vs.

Case No. 10-CV-2400-EFM-GLR

LA FAMILIA CORPORATION,
ALONDRA, INC., and VICENTE de la PAZ,
SR., VICENTE de la PAZ, JR., AND
ARTURO de la PAZ,
Defendants.

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion to Reopen Discovery and Defer Consideration of
Defendants’ Motion for Summary Judgment (Doc. 139). Plaintiff seeks to reopen discovery to
depose two employee witnesses and submit their testimony in opposition to Defendants’ Motion
for Summary Judgment (Doc. 124). It also asks the Court to defer ruling on Defendants’ Motion
for Summary Judgment until February 15, 2013. For the following reasons, the Court denies
Plaintiff’s motion.
Federal Rule of Civil Procedure 56(d) (“Rule 56(d)”) provides: “If a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its

opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”1 The
Tenth Circuit has held that the general principle of Rule 56(d) is that “ ‘summary judgment
[should] be refused where the nonmoving party has not had the opportunity to discover
information that is essential to his opposition.’ ”2 Based on this principle and the plain language
of the rule, Rule 56(d) only applies before the non-movant has filed its response to a motion for
summary judgment.
In this case, discovery closed on May 18, 2012, after three extensions totaling thirteen
months. Defendants filed their Motion for Summary Judgment on July 18, 2012. Plaintiff fully
responded to that motion on August 8, 2012 (Doc. 128). Not once before filing its response did
Plaintiff indicate that it did not have sufficient evidence to respond to Defendants’ motion.
Therefore, because Plaintiff has already fully responded to Defendants’ Motion for Summary
Judgment and because Plaintiff did not indicate before filing its response that it did not have
sufficient evidence to oppose the motion, Plaintiff’s Rule 56(d) motion is untimely.
Plaintiff has also failed to show that the facts it seeks to discover were previously not
available. A Rule 56(d) motion must be accompanied by a supporting affidavit that identifies the
probable facts not available, their relevance, and the steps taken to obtain those facts.3 The
affidavit must also explain why facts precluding summary judgment cannot be presented.4 Here,
Plaintiff seeks to take the deposition of two employee witnesses who were previously unwilling
1

Fed. R. Civ. P. 56(d).

2

Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 n.5 (1986)) (interpreting the same rule formerly codified as Rule 56(f)).
3

Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992)

4

Id.

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testify. According to Plaintiff’s affidavit, these witnesses will testify about the hours they
worked and the wages they were paid by Defendants. Plaintiff, however, already has this
information, and in fact, presented it in its response to Defendants’ Motion for Summary
Judgment. Therefore, Plaintiff is not seeking facts that were not previously available, and
Plaintiff’s motion is accordingly denied.
IT IS ACCORDINGLY ORDERED this 23rd day of January, 2013, that Plaintiff’s
Motion to Reopen Discovery and Defer Consideration of Defendants’ Motion for Summary
Judgment (Doc. 139) is hereby DENIED.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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